From Wed Jul 13 01:32:24 1994
Date: Wed, 13 Jul 1994 00:03:00 CDT
Reply-To: TK0JUT2@MVS.CSO.NIU.EDU
Sender: CU-DIGEST list
Subject: Cu Digest, #6.63
To: Multiple recipients of list CUDIGEST
Computer underground Digest Tue July 12, 1994 Volume 6 : Issue 63
ISSN 1004-042X
Editors: Jim Thomas and Gordon Meyer (TK0JUT2@NIU.BITNET)
Archivist: Brendan Kehoe
Retiring Shadow Archivist: Stanton McCandlish
Shadow-Archivists: Dan Carosone / Paul Southworth
Ralph Sims / Jyrki Kuoppala
Ian Dickinson
Copper Ionizer: Ephram Shrustleau
CONTENTS, #6.63 (Tue, July 12, 1994)
File 1--2600 FOIA Decision
File 2--Draft Motion in response to Am. Action BBS Judge
File 3--Steve Jackson Games case - comments/update
File 4--White House Pays off in potential patent infringement
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----------------------------------------------------------------------
Date: Mon, 11 Jul 1994 15:12:15 EST
From: David Sobel
Subject: File 1--2600 FOIA Decision
2600 FOIA Decision
A federal judge in Washington, DC has ordered the release of
Secret Service documents concerning the November 1992 raid on a
meeting of 2600 Magazine readers at a shopping mall in Virginia.
The documents were the subject of a Freedom of Information Act
lawsuit filed by Computer Professionals for Social Responsibility
(CPSR). The case is being litigated by the Electronic Privacy
Information Center (EPIC), a joint project of CPSR and the Fund
for Constitutional Government.
The FOIA case has confirmed the involvement of the Secret Service
in the incident, in which numerous individuals were detained,
searched and ordered to identify themselves even though no search
warrant was presented. The detentions and searches were conducted
by Arlington County Police and mall security officers. Meeting
participants believe that these actions were undertaken at the
behest of the Secret Service, which has never publicly explained
its role in the incident.
Judge Louis F. Oberdorfer's decision and order are re-printed
below.
David L. Sobel
Legal Counsel
Electronic Privacy Information Center
================================================================
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
COMPUTER PROFESSIONALS FOR )
SOCIAL RESPONSIBILITY, )
)
Plaintiff, )
)
v. ) Civil Action No. 93-0231-LFO
)
UNITED STATES SECRET SERVICE, )
)
Defendant. )
_________________________________)
MEMORANDUM
Plaintiff brought this action under the Freedom of
Information Act, 5 U.S.C. Sec. 552 et seq., to obtain any
documents in defendant's possession relating to the breakup of a
meeting of computer enthusiasts that took place on November 6,
1992 at the Pentagon City mall in Arlington, Virginia. The
attendees, apparently affiliated with a computer magazine called
2600 and referred to in media accounts of the incident as computer
"hackers," were dispersed shortly after their arrival by Arlington
County Police and mall security officers.[1] According to
plaintiff, the officers took names of attendees and confiscated
some of their personal property before ordering them to leave the
mall. Plaintiff also avers that an agent or agents of defendant
participated in the incident.
Plaintiff submitted its FOIA request to defendant on November
10, 1992. Several months later, defendant released to plaintiff
------------------------
[1] See "Hackers Allege Harassment at Mall," Wash. Post ,
Nov. 12, 1992, at A9.
several newspaper articles about the incident. Defendant informed
plaintiff that it was withholding two additional responsive
documents pursuant to FOIA exemptions 7 (A), (C), and (D). The
parties filed cross-motions for summary judgment. During the
pendency of these motions, defendant discovered six additional
responsive documents in its Washington, D.C. field office.
Defendant submitted a supplementary declaration and memorandum in
which it stated that it would withhold the six new documents under
the same three FOIA exemptions claimed for the two earlier
documents. Defendant subsequently filed an additional declaration
_in camera_. Plaintiff has moved to strike defendant's _in
camera_ submission.
I.
Plaintiff objects to defendant's _in camera_ submission on
the ground that permitting such submissions in FOIA actions
undermines the adversarial structure of Vaughn v. Rosen, 484 F.2d
820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974), by
preventing the plaintiff from expressing its views as to the
government's reasons for withholding documents. See Yeager v.
DEA, 678 F.2d 315, 324-25 (D.C. Cir. 1982). As plaintiff
contends, _in camera_ submissions should only be permitted in
those instances where they are "absolutely necessary" to resolve
the case. Id. This is such an instance. Defendant has made a
thorough effort to explain as much of its case as possible in its
public filings. However, the confidential nature of the criminal
investigation underlying
(2)
defendant's withholding of documents makes _in camera_ review the
exclusive means of weighing specific aspects of defendant's
claims. Accordingly, plaintiff's motion to strike defendant's _in
camera_ submission will be denied, and that submission will be
considered in ruling on the parties' cross-motions for summary
judgment.
II.
FOIA exemption 7 permits the withholding of several
categories of "records or information compiled for law enforcement
purposes." 5 U.S.C. Sec. 552(b)(7). Initially, plaintiff argues
that defendant has categorically failed to satisfy the threshold
requirement for invoking exemption 7 because defendant has failed
to demonstrate that the information at issue relates to a criminal
investigation.
Defendant's public declarations specify the nature of the
underlying criminal investigation, and its _in camera_ submission
discusses that investigation with even greater specificity. This
is a case to which exemption 7 might properly be applied.
Defendant has withheld documents based on three provisions of that
exemption.
A.
FOIA exemption 7(C) permits the withholding of information
that "could reasonably be expected to constitute an unwarranted
invasion of personal privacy." 5 U.S.C. Sec. 552 (b)(7)(C).
Defendant argues that exemption 7(C) applies in this case because
of "the 'strong interest' of individuals, whether they be
suspects, witnesses, or investigators, 'in not being associated
unwarrantedly
(3)
with alleged criminal activity.'" Dunkelberger v. Department of
Justice, 906 F.2d 779, 781 (D.C. Cir. 1990) (citation omitted).
The cases defendant cites in support its exemption 7(C) claim
generally involve persons whose connection with a criminal file
could embarrass or endanger them -- for example, persons
investigated but not charged in criminal matters. See, e.g., Fund
for Constitutional Government v. National Archives and Records
Service, 656 F.2d 856, 861-66 (D.C. Cir. 1981). Defendant has not
suggested that the meeting at issue here is the object of any
criminal investigation. The incident occurred in plain view of
the patrons of a busy shopping mall. The mere fact that defendant
has maintained materials relating to the incident in connection
with a criminal investigation does not mark participants in the
meeting with the "stigma" of being associated with a criminal
investigation, which defendant identifies as the gravamen of its
7(C) claim. Indeed, several participants in the meeting have
executed privacy waivers in connection with a later FOIA request
from defendant, which suggests that they do not perceive release
of the material defendant is withholding as a threat to their
privacy interests. Exemption 7(C) is not an appropriate basis for
withholding responsive documents in this case.
B.
Defendant next invokes FOIA exemption 7(D), which permits the
withholding of documents that "could reasonably be expected to
disclose the identity of a confidential source ... and ...
information furnished by a confidential source." 5 U.S.C. Sec.
(4)
552(b)(7)(D). To support its claim of this exemption, defendant
initially cited the law of this Circuit that "in the absence of
evidence to the contrary, promises of confidentiality are
'inherently implicit' when the FBI solicits information." Keys v.
Department of Justice, 830 F.2d 337, 345 (D.C. Cir. 1987)
(citations omitted). However, during the pendency of this motion,
the Supreme Court in Department of Justice v. Landano, 113 S.Ct.
2014 (1993), eliminated the Keys presumption. The Court held that
exemption 7(D) only applies where there is an actual promise of
confidentiality, or circumstances from which such a promise may be
inferred -- for example, a type of crime that makes recriminations
against sources likely. Id. at 2023. After Landano, which
defendant concedes governs the exemption 7(D) claim in this case,
defendant's sole basis for applying exemption 7(D) is a statement
in its supplemental memorandum that defendant "recently contacted"
the source, which told defendant that the source understood the
information to have been provided on a confidential basis.
Supplemental Declaration of Melvin E. Laska (June 18, 1993) at
para. 49. Such a post hoc rationalization is inadequate. At no
time has defendant offered any evidence of an express or implied
promise of confidentiality at the time the source provided the
information. Thus, defendant's exemption 7(D) claim does not
survive Landano.
C.
Defendant's strongest claim for withholding certain responsive
documents is based on FOIA exemption 7(A) That exemption permits
(5)
an agency to withhold responsive documents that "could reasonably
be expected to interfere with law enforcement proceedings." 5
U.S.C. Sec. 552(b)(7)(A). Defendant has represented that it is
maintaining the withheld documents as part of a particular,
ongoing criminal investigation. It has elaborated on this
representation in its _in camera_ submission. Withholding of
documents is appropriate under exemption 7(A) if release of the
documents would interfere with the ongoing investigation in any of
the ways defendant enumerates: by alerting individuals that they
are under investigation, thus allowing them to alter their
behavior; by exposing or chilling the participation of informants
or witnesses; or by providing premature access to the government's
strategy or the nature, focus, and limits of its case. See
generally NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 239-241
(1978).
Defendant, however, has failed to demonstrate that the
release of each of the documents it has withheld would interfere
with the ongoing investigation in any of these ways. Defendant's
public filings state that the investigation involves allegations
made by, a private corporation of telephone fraud. See
Defendant's Supplemental Memorandum of Points and Authorities in
Support of Defendant's Motion for Summary Judgment (June 25, 1993)
at 3. Thus, defendant cannot fear the possibility that release of
the withheld documents might reveal defendant's involvement in
this type of investigation. Similarly, the fact that the
documents at issue are responsive to plaintiff's FOIA request
indicates that those documents concern the breakup of the November
6, 1992 meeting
(6)
at Pentagon City. Thus, defendant cannot claim exemption 7(A) to
withhold documents based on the possibility that the documents
would reveal that investigators were interested in that meeting.
The only documents at issue that defendant might properly withhold
under exemption 7(A) would fall into one of the following three
categories: information identifying the individual(s) under
investigation and stating that they are under investigation;
information identifying any witness(es) or informant(s) of the
activity under criminal investigation and stating that they are
witnesses or informants; and information revealing the particular
strategy or parameters of the criminal investigation, such as the
name of the corporation complaining of telephone fraud, the dates
of the suspected criminal activity, or any conclusions defendant's
agents have drawn in connection with the investigation. Beyond
information in these specific categories, defendant has failed to
explain how release of any withheld documents would interfere with
any ongoing criminal investigation. Accordingly, the accompanying
Order instructs defendant to redact from the withheld documents
information that falls into the three specific categories
described in this paragraph and to release the redacted documents
to plaintiff.
Date: July 1, 1994 /sig/
Louis F. Oberdorfer
UNITED STATES DISTRICT JUDGE
(7)
------------------------------------------------------------------
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
COMPUTER PROFESSIONALS FOR )
SOCIAL RESPONSIBILITY, )
)
Plaintiff, )
)
v. ) Civil Action No. 93-0231-LFO
)
UNITED STATES SECRET SERVICE, )
)
Defendant. )
_________________________________)
ORDER
For the reasons stated in the accompanying Memorandum, it is
this 1st day of July 1994, hereby
ORDERED: that plaintiff's motion to strike defendant's _in
camera_ submission should be, and is hereby, DENIED; and it is
further
ORDERED: that defendant's motion for summary judgment should
be, and is hereby, GRANTED in part with respect to FOIA exemption
7(A); and it is further
ORDERED: that plaintiff's cross-motion for summary judgment
should be, and is hereby, GRANTED with respect to FOIA exemptions
7(C) and (D) and is GRANTED in part with respect to FOIA exemption
7(A); and it is further
ORDERED: that defendant shall redact from the withheld
documents information that falls into the three specific
categories described in the accompanying Memorandum and shall
release the redacted documents to plaintiff.
/sig/
Louis F. Oberdorfer
UNITED STATES DISTRICT JUDGE
------------------------------
Date: Sat, 9 Jul 94 22:53:05 PDT
From: hkhenson@CUP.PORTAL.COM
Subject: File 2--Draft Motion in response to Am. Action BBS Judge
DRAFT MOTION
(Note this is not a motion, but an early draft by a non-lawyer --
-me- about one aspect of the AA BBS case. I have been very
concerned with what I have found about the performance of the
courts. It has turned out to be a lot worse than I thought.
Keith Henson)
On July 8, 1994 Judge Julia Smith-Gibbons, United States District
Court for the Western District of Tennessee in Memphis TN,
verbally ruled that defendant's motion to dismiss (improper venue
based on the North American Free Trade Agreement and others) was
denied. Her words were that her order denying the motion was "in
the typewriter." Defendants and defendant's attorney expect (on
the basis of her previous judicial conduct) to be handed the
written order at the time of trial, precluding any interlocutory
appellate remedies.
Defendants Robert and Carleen Thomas are therefore forced to
appeal Judge Gibbon's ruling without an order reduced to writing
and signed by the court. However, her verbal ruling is "final"
with respect to this issue.
If this interlocutory appeal were delayed until after trial the
Thomases' would be irreparably harmed, even if acquitted. Not
only would they lose the cost of trial, which could not be
recovered civilly, but they would have to shutdown their business
as it requires part time physical presence. (Trial in this area
would not be as onerous in that the business could continue to be
operated with a few hours attention each night.)
These motions are being filed in both the Sixth and Ninth Cir-
cuits because the underlying case involves an *assault* on the
authority of the Circuit Courts, and therefore upon the entire
court system. When the Courts lose their capacity to function
normally it is termed insurrection. The case at hand may be
close to this state.
As is made clear by attached documents, a *district* court in the
Sixth Circuit is attempting to enforce authority over persons and
property in the Ninth Circuit on the basis of a manufactured
"crime".
The gross inequity performed by law enforcement agents in
manufacturing the child pornography charge could be proved at
trial, but the *law* on which the "crime" is based (Title 18,
Section 2252 of the Federal Code) has been ruled "unconstitutio-
nal on its face" in the Ninth Circuit (US vs X-citement Video,
Inc., 982 Federal Reporter Second Edition, page 1285, Dec. 16,
1992). At the time of the search of the Thomas's home and
business, (January 10, 1994) this statute *could not* be used to
prosecute *any* person in the Ninth Circuit because it is an
unconstitutional law, and unenforceable. (Judge Gibbons was
notified on June 22, 1994 of these facts.)
On January 26, 1994 a Federal Grand Jury in Memphis Tennessee
returned an indictment against Robert Thomas citing section 2252,
a section which *could not be applied* by any Ninth Circuit
District Court to a citizen in that circuit or any other Circuit.
(There were other sections cited including section xxx calling
for forfeiture of their home, bank accounts, cars, and tens of
thousands of dollars of computer hardware to the Tennessee
authorities.)
The effect--if a district court in one section of the country is
allowed to charge citizens on laws ruled unconstitutional in the
Circuit where they live--is to completely undermine the authority
of all the Circuit courts in the country. This case is about
liberty and property, but taken to the extreme, a person could be
removed from his home by a District Court operating in another
part of the country and executed.
This appeal is about nothing less than the authority of *any*
Federal court to protect the life, liberty and property of any
citizen of the United States.
If this appeal is not granted, it will show that the Circuit
courts can ignore another Circuit's laws and do anything they
want with a citizen's life, liberty and property. It will show
that the Circuit courts do not have the authority to protect
life, liberty, or property for the people within their circuit,
and ultimately will undermine the courts ability to protect any
inhabitant of the United States.
(Net.folks--please comment!)
------------------------------
Date: Thu, 8 Jul 1994 22:50:18 PDT
From: George, Donaldson & Ford
Subject: File 3--Steve Jackson Games case - comments/update
Source: LEGAL BYTES, Spring 1994, Volume 2, Number 1
gdf@well.sf.ca.us
___________________________________
Copyright (c) 1994 George, Donaldson & Ford, L.L.P.
(Permission is granted freely to redistribute
this newsletter in its entirety electronically.)
======================================================================
STEVE JACKSON GAMES v. UNITED STATES SECRET SERVICE:
GOVERNMENT DROPS ITS APPEAL; PLAINTIFFS PRESS FORWARD ON
"INTERCEPTION" ISSUE
Earlier issues of LEGAL BYTES reported on the lawsuit brought by
the Austin, Texas role-playing game publisher, Steve Jackson Games,
against the U.S. Secret Service for violating the company's civil
rights and the privacy rights of its electronic bulletin board
system's users. Armed with bare suspicion and a search warrant based
on largely inaccurate information, the Secret Service on March 1, 1990
raided the company's offices, seizing its BBS and two other computers,
hundreds of floppies, drafts of a soon-to-be released game book, and
volumes of other computer records and documents. No one was ever
arrested or charged, but the Secret Service kept the BBS and other
materials for almost four months.
Three years later, the Secret Service found itself in federal
court, not prosecuting anyone at Steve Jackson Games, but instead
trying to defend its raid against a civil lawsuit brought by the
company, its owner Steve Jackson, and three outside users of the
company's BBS (represented by the lawfirm publishing this newsletter).
After a three-day trial, Judge Sam Sparks held that the Secret
Service's seizure of the draft game books and the BBS violated the
Privacy Protection Act of 1980, and that its seizure, without probable
cause, of the BBS e-mail violated a provision of the Electronic
Communications Privacy Act of 1986, 18 U.S.C. Section 2703. The
Secret Service was ordered to pay $1,000 to each of the users of the
BBS, and over $50,000 to Steve Jackson Games to compensate for damaged
equipment and lost sales. The government also agreed to reimburse
over $250,000 in costs and attorneys' fees incurred by the company in
bringing the lawsuit.
The Secret Service initially gave notice of its intent to appeal
the judgment, but by January, 1994, had changed its mind. The appeal
was dismissed, and the government has now paid a total of over
$300,000 to the Plaintiffs. This is the first and only known recovery
of money from the federal government for violating the civil liberties
and privacy of computer users.
The Plaintiffs' victory was not complete, however. Judge Sparks
rejected their argument that the Secret Service had violated yet
*another* law when it seized the BBS -- the Wiretap Act, as amended by
the Electronic Communications Privacy Act of 1986 (the "ECPA").
Congress expanded the Wiretap Act in 1986 to include protection for
all types of electronic communications, including electronic mail and
private bulletin board communications. The Wiretap Act prohibits
interception of electronic communications without a court order, a
greater burden than obtaining a simple search warrant from a federal
or local magistrate or judge.
When the Secret Service seized the Steve Jackson Games BBS, it
contained undelivered electronic mail -- that is, mail written by a
user and addressed to another user, but not yet read by the intended
recipient. When the Secret Service seized the BBS, and then later
read and deleted all the e-mail on that BBS, this mail lost its
privacy, and was prevented from being delivered.
The government argued that the seizure of mail in transit was not
an "interception" under the Wiretap Act because the e-mail was
temporarily stored on the hard drive of the computer. Judge Sparks
agreed, although the Plaintiffs argued that walking off with mail in
transit and preventing it from being delivered sure *seems* like an
interception. Judge Sparks' decision has in effect added an
additional requirement to the definition of interception -- that an
"interception" must be *contemporaneous* to its transmission, and
therefore the seizure of a storage device can never qualify as an
interception.
The word "contemporaneous" does not appear in the Wiretap Act and
the Plaintiffs have argued that the legislative history of the
Electronic Communications Privacy Act, as well as the language and
logic of the act, indicates that seizures of BBSs that include
undelivered e-mail are "interceptions" of such communications
requiring court orders.
The government has responded by arguing that the ECPA establishes
two separate, airtight compartments -- one for "stored" electronic
communications resident on hard drives, no matter how temporarily, and
communications that are in-transit, that is, where the electrons are
moving from computer to computer. Under the government's theory, BBS
or Internet e-mail changes legal status, and therefore the level of
protection, as it moves from computer to computer on its way to its
destination.
This issue remains important despite Judge Sparks' other ruling
that the Secret Service's seizure of *all* the e-mail violated another
provision of the Electronic Communications Privacy Act. At least some
law enforcement agencies appear to be interpreting Judge Sparks'
decision as a "go ahead and seize, but don't read or delete, and try
to return promptly" rule; that is, that the law permits them to seize
electronic mail without probable cause, as long as they do not read or
delete it. Although this is not an accurate reading of Judge Sparks's
ruling, a clear decision that the seizure of in-transit e-mail would
unambiguously protect not just the *privacy* of e-mail, but would
protect the *delivery* of the mail as well. Other methods, including
subpoenas and making on-site duplicates, can preserve the government's
need for information when legitimate and supported by probable cause.
Further, the ruling exhibits a static application of the statute
to technology, not intended by Congress when the ECPA was enacted.
The Plaintiffs have pressed forward with their appeal in order to
establish better protection for electronic communication privacy. The
government and law must come to grips with the proliferation of
privately owned and operated communications systems. While
single-line dial-up BBSs are now relatively primitive, there are
countless thousands of them. The large commercial services such as
CompuServe and America Online are growing at fantastic rates; Steve
Jackson Games' own BBS has become a commercial Internet machine with a
T-1 line and over a dozen dial-up connections, providing ftp, telnet,
newsgroup and e-mail services. It is not unreasonable to ask the
government to give new means of communications the same respect as it
has long granted telephone calls. With the much-vaunted information
superhighway coming, the government will face these problems anyway.
Private communications increasingly will travel over privately owned,
small, decentralized service providers, and the government cannot
continue to argue that the difference in technology (or size) warrants
lower protection under the law.
------------------------------
Date: Mon, 11 Jul 1994 14:53:56 -0700
From: "Brock N. Meeks"